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Thursday, 31 December 2015

The Prankster previously blogged that the British Parking Association are attempting to change the terms of the appeals process by only adjudicating on a single point. Although the BPA are attempting to claim all other points have been adjudicated on, they have no credible proof of this. In fact this is an impossibility for many cases because the operators have not yet filed evidence packs, so there is nothing to adjudicate on. In at least one case the BPA have admitted by email that the case was not fully adjudicated.

Ironically, their own actions may invalidate the parking charge, even if all other points are later considered (eg by a court) and would have been found in the operators favour had not the BPA intervened.

Under the provisions of the PoFA in order to claim keeper liability the parking company has to comply with certain conditions. One of those conditions (7.2.d or 8.2.g or 9.2.g) is to serve a notice which must “inform the driver of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available.” In all of those 4000 cases that will have taken place. However, if the arrangements have altered, because the BPA has changed them, the keeper can then argue that the parking company cannot pursue keeper liability because the arrangements are not the same as those disclosed.

If you have a stayed case at POPLA, it may be worth you writing to the parking company.

Dear Operator,I understand that the BPA is considering changing the arrangement for the resolution of my case currently under appeal. If this occurs, then as the arrangements for the resolution of disputes or complaints that are available to me are different to those set out in the notice you served on me under paragraph [7(2)(d)/ 8(2)(g)/9.2(g)] of Schedule 4 of PoFA then you have not complied with that condition and as such you will then be unable to pursue keeper liability. I expect you to formally withdraw your claim in such a case, as you will no longer have a cause of action.

You can also write to the BPA at aos@britishparking.co.uk

Dear BPA,I understand that you are considering changing the arrangement for the resolution of my case currently under appeal. If this occurs, then as the arrangements for the resolution of disputes or complaints that are available to me are different to those set out in the notice served by the operator on me under paragraph [7(2)(d)/ 8(2)(g)/9.2(g)] of Schedule 4 of PoFA then they will have not complied with that condition and as such will no longer be able to pursue keeper liability. I therefore wish to add this as an appeal point in my case. Please confirm that this has been added and will be considered by any assessor.

In this blog The Prankster takes a look at the impact assessment in light of the data available since the keeper liability act was passed.

The first question is whether the act is necessary at all. If we look at keeper data released to parking companies in 2014 by the DVLA we see the following are the top 5 most unsuccessful companies at managing car parks properly:

Of these, only the first and last (ParkingEye and Euro car parks) use the keeper liability legislation. The others all issue deliberately non-compliant notices to keeper and do not use keeper liability legislation; they pursue the keeper on the basis that they are likely to be the driver.

If 3 of the top 5 parking companies do not need the keeper liability legislation, the big question is whether the legislation is needed at all?

Description and scale of key monetised costs by ‘main affected groups’ We do not believe that this change would increase costs to government. Parking companies would have a
one-off cost to amend signs/paperwork and to set up an independent appeals service. There would also be
annual costs thereafter to fund the independent appeals service.

The annual cost of an appeal service was estimated at £0.6m. This appears to be an underestimate. The BPA currently have a disagreement with London Councils over an apparent £180,000 amount still owing, and of course there are two appeals services as the IPC have entered the sector.

Other key non-monetised costs by ‘main affected groups’ A reduction in the number of complaints/appeals where the defence is that the keeper of the vehicle was not
the driver at the time.
An increase in the number of tickets being paid. This has not been costed as the rate of increase is
unknown.
The number of appeals where the defence is that the driver is not the keeper may have decreased, but other appeal reasons are equally valid. Data which ParkingEye filed in court admits they issue 65% of tickets in error. A further 45% of tickets are then cancelled by the appeals body, POPLA. It appears then, that most tickets are issued without a valid reason.Description and scale of key monetised benefits by ‘main affected groups’ Reductions in administrative burdens on DVLA due to fewer claims being processed from the issue of
parking charges (costs to DVLA are recovered via the fee charged for providing vehicle keeper information).

In 2010/11, the year before POFA 2012 started, Parking Companies made 1,178,034 keeper enquiries. In 2014/15, Parking Companies made 3,083,276 enquiries. In the 6 months April-September 2015, Parking Companies made 2,273,254 enquiries, or an extrapolated 4,546,508 enquiries per year. So, the legislation has increased the burden on the DVLA fourfold.

The impact assessment predicted that the number of extra tickets issued would only be 500,000.

The DVLA are not too unhappy about this. At £2.50 a pop, this represents substantial income to the DVLA. Senior members of the DVLA have KPIs which depend on this income, so in effect they are financially benefiting by allowing this to continue. The DVLA attempted to erect a smokescreen about this and told the Government it costs £2.80 to process an enquiry, so actually they made a loss. However, The Prankster can reveal this is an accounting trick The DVLA have stonewalled a number of FoI request to find the true costs, but eventually the figures have been prised from their grasp.

Total cost of running the system = 12.2m
Total number of enquiries = 17,998,048
Total enquiries by parking companies = 2,430,130
Average cost per enquiry = 0.75p (note - although some types of enquiry are more expensive to handle)

Parking companies make 13.5% of enquiries but pay 45.2% of the costs

This biggest category is LA/TfL/Police/Gov who made 10,200,707 enquiries (56.7%) but pay nothing.

The DVLA are therefore using the parking company income to subsidise other services and are artificially inflating the parking company costs to try and justify this.

Other key non-monetised benefits by ‘main affected groups’There will be consistency between the enforcement regimes on the public road and private land. Motoristsmay have a clearer understanding of their responsibilities.Enables landowners to effectively enforce parking charges.A reduction in the number of cases taken to court, due to the introduction of an independent appealsservice, which in turn would benefit the Criminal Justice System.

"The BPA has said that of the 1.8 million parking charges currently issued each year around 2-5%
(36,000 to 90,000) of cases are taken to civil court per year. Court costs are not expected to increase
10
and have not been forecast because keeper liability will not be brought into force until an independent
appeals service is operating throughout the country. "

In fact this was false information provided by the BPA. Only 845 cases were filed that year, of which 49 went to a hearing. This can be contrasted with data from 2014 from the MoJ, which shows that over 37,000 claims were issued; ParkingEye issued 30,309 of these.

Overview

The number of tickets issued has massively increased from 1 million a year to over 4 million. If all these were paid at a discount rate of £60, this would result in £240 million being taken out of the economy each year to line the pockets of parking company bosses. This is money which shoppers will no longer spend in the shops and so is a blow to high street retailers. This charge level is also a serious concern to pensioners and other vulnerable members of society - the people who are most likely to fall foul of the parking companies. As this is most of the weekly pension it leaves pensioners struggling to pay for food rent and heat, all because they are too slow and frail to shop as quickly as able bodied people.

The key question is; has the number of tickets increased because motorists have become much more badly behaved, or is this because parking companies have introduced ingenious schemes which are hard to obey so they can milk the motorist? The answer is obvious.

The Parking Cowboys website 2015 survey shows that most tickets are issued to genuine customers overstaying at retail parks. There is no evidence that this enforcement results in a benefit to retailers. After all, genuine customers staying longer means they buy more things. Some retailers have even been forced to take action due to the drop in sales - both Somerfield and B&Q fired ParkingEye because of their aggressive parking enforcement hit business.

It turns out that the money which can be generated from a car park depends on how it is managed. Car Parks such as Bristol Eye Hospital are well managed; almost all motorists obey the regulations, and only a few fines were issued over a 4 year period. In contrast ParkingEye have introduced ingenious ways of milking motorists which allowed them to issue over £1 million of parking charges at one hospital trust alone. The way this is done is by making it difficult for motorists to know exactly how much to pay, by allowing incorrect numberplates to be entered, and by providing poor and confusing signage. Analysis of a typical ParkingEye car park shows entrapment zones where signage coverage is poor. This gives the car park the air of responsibility while ensuring a steady stream of victims. Rectifying these defects reduces the number of parking victims to almost zero; but this does not fit in with their business model.

Parking management is needed, but allowing parking companies to operate systems which incentivise them to issue as many tickets as possible has led to a massive outbreak of abuse of power in the last few years. Is this what the impact assessment envisaged? How should this matter be addressed?

Tuesday, 29 December 2015

Unlawful Interference with a contract? Tort of Conspiracy to injury by unlawful means?

In a recent blog the Prankster pointed out that the BPA were trying to change the appeals process for 4,000 motorists. The BPA were trying to restrict the grounds on which the appeal was to be decided to a single point, that of the level of charge. To do this, they tried to pretend that all other points had been considered even though they had no written evidence to back this up and they knew this was not true from information provided to them by motorists. The most telling information of course, it that evidence packs have not been filed by the parking companies.

The question then arises, is there a case of Unlawful Interference with a contract, or perhaps even Tort of Conspiracy to injury by unlawful means?

If either of the above actions are taking place, there may be a claim available to any motorist awaiting the settlement of his/her appeal. There may also be a breach of the Consumer Protection from Unfair Trading Regulations 2008 for which, perhaps Trading Standards should investigate.

It is clear that often there is a contract between a parking enforcement company and a motorist when that motorist parks. What of the terms of that contract though? Do they include a term that the motorist can apply to POPLA for arbitration? Beavis indicates, quite rightly, that the terms of the Code of Practice do not form part of the initial contract but compliance with the CoP is an indication of fairness for the purposes of Consumer Protection law compliance.

Is there another contract though? Once a demand has been made for the parking charge, if it is not paid, the parking company can sue for the breach of the parking contract. It seems that what actually takes place when the demand for the parking charge is made is that the parking company indicates to the motorist that “if you wish to dispute the claim I will see you in court. However, in consideration of you agreeing to enter into an ADR arrangement to settle our dispute, and to consider the arbiter’s decision, I agree to waive my rights to pursue you via litigation”. Both parties agree to consider the arbiter’s decision - if the parking company loses it cancels the debt; if the motorist loses and fails to abide by the arbiter’s decision the parking company can sue. Thus there are three stages to this parking process and each has its own distinct legal nuances.

This argument of a new contract where arbitration is agreed is given weight by a change in the 2008 Regulations which took effect from the 1st October 2014. The Consumer Protection Amendment Regulations 2014 amended the definition in the 2008 Regulations of a “product” such that when the parking company demands damages and agree to settle at £100 a “product” is offered to the motorist which is the purchase of “the settlement of actual or purported liabilities” (the product). That is what the 2014 Regulations now say. Thus there is a consumer contract, under the 2014 regulations when the parking company and the motorist agree on how to deal with the acquisition of the “product”.

So, the parking company and the motorist have entered into a contract in relation to a “product” and the terms of that contract are clear in relation to the agreed terms of reference for the arbiter.

The BPA is now seeking to unilaterally change the terms of that contract. Thus it is arguable that it is seeking to interfere in a contract to which it is not a party and which, on the face of it, appears to be a tortious interference with a contract and for which it could have a liability in damages.

We know from the Beavis decision that a defence at arbitration that the claim is not a genuine pre-estimate of loss is likely to fall on stony ground, especially in the case of a free car park. However, Beavis was only concerned with the quantum of damages and not the actual liability for damages. That had already been agreed at an earlier hearing. Thus a motorist may have any number of other valid defences to a claim e.g that the signage does not specify that there is a liability for damages; that the defendant did not own the motor vehicle and was out of the country at the time of the parking event; that the car park was visited twice.

It appears clear that, if the arbiter is to reach a decision on liability solely on the grounds of the relevancy of a GPEoL, the motorist could be prejudiced. Further, that the BPA is seeking to engineer a situation whereby the motorist will undoubtedly be found liable such that it can be argued that the BPA is deliberately trying to cause a financial loss to the motorist.

In any claim for an interference with contractual relations the claimant would need to satisfy a court that

1.The BPA had knowledge of the contract – it is difficult to argue that it doesn’t!

2.The BPA has offered an inducement to bring about a breach of contract. Clearly a decision based solely on GPEoL and in ignorance of other defences put forward by a motorist will have a benefit to a parking company. The parking company’s silence suggests that it is in agreement with the BPA’s conduct such that an inducement could be found by a court.

3.The contract was breached causing loss. At the moment there is an unwillingness by IPSA to travel the road suggested by the BPA. However, the building blocks appear to be in place to leave the BPA with a liability in tort for a loss if the terms of reference are altered. The parking enforcement company would also have a liability as it would be in breach of its contract with the motorist. That could give rise for a claim for costs against the parking enforcement company if it then proceeds to litigation. Imagine – a parking company awarded damages of £100 but told to pay the motorist costs at £19 per hour of his time (litigants in person rate) and which could easily be in excess of £200.

The motorist could be faced with litigation at which his other defences can be properly aired. That incurs a loss in terms of time and costs. It would be best if motorists keep a spread sheet of all the time they spend on any subsequent litigation if the arbiter’s terms of references are unilaterally altered. The motorist could also plead unreasonable conduct by the parking enforcement company for going along with the BPA’s proposals

So, there may well be an arguable case for the BPA to answer.

Then we have the Consumer Protection from Unfair Trading Regulations 2008. Regulation 5 makes misleading actions unlawful. Presumably parking companies are in agreement with the conduct of the BPA and are, through the BPA, seeking to change the rules under which they agreed to proceed to ADR. Has it committed a misleading action? Perhaps the manipulation of the ADR rules to benefit the trader amounts to an aggressive practice and perhaps at a criminal level. Has the BPA considered this? Should this whole sorry saga be reported to Trading Standards?

Then there is Regulation 5(3) (b). Altering the terms of reference of the arbiter, after the arbitration process has commenced, is at odds with the Code Of Practice. Where a parking enforcement company fails to comply with the requirements of a CoP it is a breach of regulation 5(3) (b) and leaves a potential civil liability.

An interesting can of worms. Perhaps BPA it is time to stop digging?

Any motorist considering taking action against the BPA or a parking company should of course seek legal advice on their own case, as every case is different and will turn on the facts of that particular case.

Sunday, 27 December 2015

[Edit. Some incorrect references to the Consumer Ombudsman were corrected to Ombudsman Services]

Shortly before the Court of Appeal heard the ParkingEye v Beavis case, ParkingEye wrote to POPLA asking that all cases which depended on the charge not being a genuine pre-estimate of loss be stayed pending the judgment.

Henry Michael Greenslade, the Lead Adjudicator of POPLA, agreed, and a number of cases were stayed. The Court of Appeal judgment came out and it was almost immediately appealed further to the Supreme Court. In line with normal practice for statutory parking appeals the stay remained until this new judgment was available. Mr Greenslade wrote to all stayed cases explaining that they would by held over until at least November 2015.

POPLA then changed hands from London Councils to the Ombudsman Services and at the time of the changeover there were around 4,000 stayed cases. As the British Parking Association had omitted these from the tender, Ombudsman Services politely refused to take these on.

The BPA now had to find a a way of getting the stayed cases adjudicated, and decided to tender out to yet another party. On the previous analysis the cost of getting these cases properly adjudicated will be around £120 per case; the BPA would be better off paying the parking companies £100 and pocketing £20.

A slightly farcical set of emails were sent out in the last days of the old POPLA. These were intended to convey the message that the stayed cases would be held at some time in the future, but the wrong email was sent out. This was hurriedly corrected and a fresh batch of emails sent out.

The letter is clearly designed to give the impression that an assessor has looked at the case, and decided that the only matter outstanding is the issue of the level of charges. However The Prankster can confirm this is not true. The Prankster has been made aware that in a large number of cases the operator has not yet filed an evidence pack. This is particularly true of ParkingEye cases.

The assessor cannot therefore possibly have made an assessment on issues such as whether keeper liability applies, whether signage is sufficient in quantity or wording, or whether the operator has authority to issue tickets.

These are all areas which have been raised in the stayed appeals, and points with which companies such as ParkingEye have lost appeals both with the old POPLA and the new POPLA. The Prankster would therefore normally expect that either the British Parking Association would allow all such appeals on the grounds that the operator has declined to defend the case.

The British Parking Association contract with POPLA, signed on 23 December 2013, explicitly states that all operator evidence packs must be filed within 28 days.

It would seem therefore that the operator has already been timed out and should not have the right to submit an evidence pack. After all, if the operator is claiming a charge for an overstay of 30 minutes on the part of a motorist, then an 'overstay' of 7 months on the part of an operator is a far greater transgression. However, as the British Parking Association is a trade association for operators they might well be lenient on this point and allow the operators to submit an exceedingly late evidence pack. The POPLA contract then allows the motorist to send a rebuttal, which should be communicated to the operator.

However, this appears not to be the tack that the BPA are taking. According to letters between the BPA and the POPLA scrutiny board ISPA, the BPA have gone for the nuclear option and have decided to save money by not having the outstanding cases fully adjudicated on all points. They have decided to tender to get the cases decided purely on the issue of charges.

The Prankster believes that Patrick Troy does not understand the significance of the Beavis case and how the law works. Although he states the decision 'was comprehensively in favour of the operator' this is of course purely based on the facts of that case. Other parking cases have different facts, and applying the guidance of Beavis will come to a quite different conclusion. For instance, there are a large number of car parks which are farmed shamelessly for penalty charges by the operators with no apparent car park management taking place. In such cases the lessons of Beavis would appear to be that the charge would be held to be a penalty in that case. In other cases, where the charge is for trespass and not breach of contract, the Beavis result comes down firmly in favour of the motorist.

The POPLA Lead Assessor made it clear that whatever the Supreme Court verdict, the claimant must make their case and it would be the operator's responsibility to state how Beavis applied, if indeed it did.

The Supreme Court also made it clear that the judgment was based on the use of the particular car park, and the clear wording of the notices, when they tweeted following the judgment.

Indeed, even HHJ Moloney made this clear in his initial judgment.

It is of course also a possibility that had ParkingEye been entirely truthful with the Supreme Court, had not produced false information and overly redacted evidence and had produced the true facts on which the court wrongly inferred then the judgment may have gone the other way.

Therefore making a judgment on 4,000 stayed POPLA cases EVEN JUST ON THE ISSUE OF THE LEVEL OF CHARGE would not appear to be valid if the operator is not allowed to make their case on why Beavis applied, and the motorist allowed to make representations on why it does not.

Prankster Notes

So, to summarise

There are 4,000 stayed cases which would cost around £400,000 to assess properly

The BPA are trying to save money by not getting the cases properly assessed

The BPA are trying to pretend that the stayed cases have been assessed on all grounds except for GPEOL

They are fully aware this is not true as they have been robustly informed of this by many motorists and organisations, including The Prankster

It is impossible for the cases to have been assessed because in many cases the operator has not even filed any evidence

In at least one case, the case is being heard on grounds not connected with GPEOL at all because the case is being reheard due to the operator not following correct procedure

Even the Beavis case relied on evidence including signage maps, signage copies, and the operator contract with the landowner

The ISPA is prepared to call the BPA's bluff and get a sample set of cases independently assessed

The Prankster can give the ISPA a large number of POPLA codes which should form part of this assessment

The BPA are relying on an alleged undocumented conversation between Patrick Troy and the Lead Assessor of POPLA of which they have no written proof, and which is in direct contrast to the claims of conversations ISPA have had with the Lead Assessor

There is no written proof that any assessments have taken place at all

The Supreme Court, HHJ Moloney, ISPA, Motoring Organisations and The Prankster all believe each case must be heard on the facts. Only the BPA is in disagreement with this.

The Prankster suggests that the next step should be to get a number of cases completely assessed, based only on the evidence currently filed by both parties. The Prankster can supply a large number of POPLA cases suitable for this assessment. If any of these cases can be decided for the motorist on non-GPEOL grounds, then all 4,000 cases should be fully assessed...or perhaps the BPA should just cut its losses by negotiating a fee to pay to the parking companies for each outstanding case.

Once shoppers get a parking charge they think twice about returning. A Worksop woman stated:

I don’t shop in Worksop any more after my family were hit by two £100 fines for picking someone up. We now go to Meadowhall where it’s free and we don’t get pictures taken of us. It’s invasive and you have to mess around imputing your registration into the machine, which you will get fined for again if you get it wrong.

It is clear that the system is not fit for purpose - there appears to be no genuine reason why a charge would be issued for picking someone up. This clearly indicates either the signs are deficient or the pay on exit system does not show the correct charge to be paid. Issuing charges for inputting a wrong registration is another trick used by the more disreputable end of the parking industry. Car park operators who offer a genuine parking management service have systems which detect when an incorrect number is entered, and help the motorist to enter a correct number. However, this greatly cuts down on the number of parking charges which can be issued. Parking companies such as ParkingEye rely entirely on income from parking charges and use systems which are hard to use and maximise the number of errors a motorist can make.

The difference in management systems makes a huge amount to the number of charges issued. Freedom of Information requests show that managing a car park in a responsible way results in almost all motorists obeying the rules and so incurring no penalties. Conversely, farming car parks the ParkingEye way results in large numbers of charges being issued to the detriment of motorists, landowners and the general public.

ParkingEye's talent at farming car parks to maximise the ability to issue parking charges allowed them to increase their profit from the £1.7 million reported to the Supreme Court in the Beavis case to £4.8 million the following year (£3.6 million if a pro-rata adjustment is made to take into account the 2014 period is 16 months not 12). This is an abysmal track record if you consider that truly successful car park management is to achieve full compliance without the need to issue charges and alienate your customers, driving them away to rival establishments.

B&Q reportedly terminated ParkingEye's contract because they were driving so many customers away with aggressive enforcement. Once a new car park management company was installed, the customer base gradually returned.

Not everyone agrees with The Prankster's analysis of course. The manager of the Priory Shopping Centre, David Aunins, has defended Parking Eye’s car parking management, which he says is ‘safe and secure’.

It is not immediately clear to The Prankster why adding two ANPR cameras makes a car park either safe or secure, but perhaps if you are mugged while crossing the road at the exact moment a car is entering or exiting then the ANPR pictures can be used to catch your attacker.

On the back of their Supreme Court win ParkingEye have issued a huge mailshot dredging up historic cases, many over two years old. The Prankster posbag is full of complaints and queries from motorists about these letters.

The correspondence comes from Equita - both Equita and ParkingEye are controlled by Capita, so in essence this is a Capita-controlled exercise.

Although the Supreme Court found that a charge of £85 was valid, this is no longer enough for ParkingEye and they have over doubled this amount, issuing letters asking for £200.

In all the letters The Prankster has seen the letters contain the false statement 'ParkingEye Ltd has written to you recently...' In most cases the last contact was two years ago. In some cases this is the first letter the keeper has ever received.

The letter also contains a misleading reference to the Supreme Court decision in ParkingEye v Beavis. Although this is a binding precedent, it is of course only binding where the facts and circumstances are similar. It certainly does not justify a charge of £200, and there are many other defences which may mean the parking charge does not apply.

The Prankster therefore advises anyone disputing the charge to reply robustly to Equita.

Dear Equita,The debt is denied. Please return the case to your principalDebt Collection costs are therefore not appropriate and will be wasted costs.I am prepared to use alternative dispute resolution to attempt to settle this matter and suggest either POPLA or the Consumer Ombudsman are appropriate bodies. Please note that courts may apply sanctions if an offer of ADR is ignored or unreasonably refused.I am firmly of the belief this matter can be settled by ADR. However, if your client wishes to settle via court action please ensure practice directions are followed. Current directions are here:https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conductI will seek my full costs regardless of the eventual result if your client takes court action without first engaging in reasonable ADR.The debt is denied for the following reasons.(your reasons here - see the previous blog post for reason which may still be valid)Additionally, I have not received the letter you state ParkingEye sent to me recently. Please provide a copy of this letter together with the date sent.

Please also provide a full breakdown of the £200 charge.Please note that the case of ParkingEye v Somerfield establishes that debt collection costs of around £60 are not allowable.

Here is a report from a motorist who won this week against ParkingEye. This was during the period of bad weather.

So we just came out of Court. ParkingEye didn’t turn up but had asked for an adjournment due to the weather and the floods in Cumbria. ParkingEye are based in Chorley and their advocate from LPC Law was traveling from Newcastle. The Court staff knew of people who had traveled from Newcastle without any problem and the Judge himself pointed out that he had traveled from Burnley that morning without even any delays - and so the case was dismissed.

It is a win at the moment but not what I had in mind. Our defence shows that we were not in the car park when they said we were, and so the accuracy of the ANPR was questioned. We didn’t receive the “notice to keeper” but they said they could prove they sent it. The land owners as well as ParkingEye themselves were contacted to request what authority ParkingEye had to run this car park.In ParkingEye’s reply to our defence they did not show any proof at all of ANPR accuracy. They were unable to produce any proof of postage of for the Notice to Keeper.They did not provide any evidence whatsoever that they had permission to run the Snowdon Mountain Railway car park.The Law society frowns upon an advocate entering court if their name and qualifications were not forwarded to the Court before the case. I asked the Court staff if they had and the reply was that they had not.Prankster Note
These would probably be good enough grounds to win the case even if ParkingEye had turned up - ParkingEye therefore saved themselves the cost of a lawyer from LPC Law (usually £150-£300).

The Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67 establishes that a Parking Charge for breach of contract of up to £85 may be allowable as a deterrent in some circumstances. To avoid over-eager judges striking out defences without properly reading them, it is advised that any defence against a parking charge raises other matters first.

Eg

The event did not occur - the ANPR records were inaccurate

The requirements for keeper liability were not established as the NTK was not received in the allowable timeframe

ParkingEye are acting as agents and the risk remains with the landowner, so they have no authority to sue (locus standi) (Fairlie v Fenton)

A non-exhaustive list of possible other arguments are:

The signage coverage was poor and did not establish a contract

The signage wording was ambiguous

The signage did not require the information required in distance contracts according to consumer law so any contract is non-binding

The signage omitted material information which is against Consumer Law

The signage had no planning permission

And finally, if the charge level is disputed, at least show the judge you are aware of the Beavis case Eg

The charge is for breach but is not a genuine pre-estimate of loss. ParkingEye have not shown that in this car park they meet the criteria laid down in ParkingEye Ltd v Beavis [2015] UKSC 67, and in particular that the charge is no greater than is necessary for deterrence. As this is binding case law, this case should be dismissed.

Saturday, 5 December 2015

MIL Collections Ltd are a debt collection company based in Truro. According to LinkedIn their MD is Alan Davies; Alan is also MD of Gleam Clean Service Ltd.

Alan is the sole shareholder, owning both shares in the company, having acquired the other share from his wife some time previously.

MIL have a fairly poor reputation as debt collectors and a quick Google search turns up a large number of complaints regarding the tactics they use. Although they are members of the CSA, in The Pranksters opinion many of the tactics they use are against the CSA code of practice.

Recently MIL have been buying old parking cases from parking companies for around £1 each, and have been attempting to monetise these by aggressively contacting the vehicle keeper and hugely inflating the cost. MIL move to court action as soon as possible, failing to follow practice directions for pre-action conduct. The idea appears to be that by filing a court claim either they scare the keeper into paying up, or the keeper fails to respond so they can get a default judgment..

Of course, one reason that the monies were never paid is often that they were not owed in the first place. Some clever people in the parking and debt collection industries have realised that this is no barrier to making money. By filing court claims in bulk, enough people will be scared into paying up that a lucrative income stream is almost guaranteed. While it is easy and cheap to file a bogus claim in this way, it is very tricky for the man in the street to know how to fight this properly, or to unwind it if things have got as far as a default judgment.

This week another MIL case made it to a county court hearing. The hearing took place in Manchester between MIL Collections and Dr S. Dr S was assisted by the British Motorists Protection Association with HO87 running the defence and preparing the documents, and John Wilke acting as lay representative. MIL Collections, smarting with their earlier court loss, decided to dispense with the services of their barrister. In fact, they even dispensed with the services of their own staff, not bothering to send anyone all the way from Truro to Manchester just to get a good spanking in court.

The defence had a number of good arguments about champterous assignment of debt, but these were not specifically tested in court, the judge deciding to rule on easier points.

The case was won due to failure to comply with Schedule 4 of POFA, the lack of a valid deed of assignment, no proof that the parking company had the right to issue tickets and no proof of the right to litigate.

The judge made it clear that MIL Collection's case was wholly deficient and made even more hopeless as the evidence was served late and was not filed with the court. Additionally, when the judge was shown the evidence served he was of the view that it did not meet court requirements anyway.

MIL Collections had not sought to excuse their non-attendance either.

In the costs hearing, John Wilkie argued that as MIL Collections had neither turned up nor notified the court they caused court and the defendant's time to be unnecessarily wasted. The claim was entirely deficient, as outlined in the defence and witness statement, and had no chance of succeeding. Had the defendant known the claimant was not coming they could have had a paper based hearing.

Because of their conduct and pursuing a wholly deficient and hopeless case ab initio it was entirely appropriate for a punitive costs order to be made, which would include Lay Representative costs. This would be under the 'unreasonable behaviour' provision (27.14.g) of the small claim track rules.

John Wilkie pointed out DDJ Buckley's judgment in the Forgione case, which the judge was aware of. The judge hemmed and hawed and finally agreed. He ruled that pursuing a hopeless case, serving late, failing to file, failing to turn up and wasting court time was certainly unreasonable behaviour and awarded the full costs asked for, which were defendant's loss of earnings, travel, and the full lay representative expenses, all to be paid withing 14 days or enforced.

The judge suggested a Third Party debt Order as MIL Collections had very kindly supplied their bank details, and Dr S agreed this was the best method for enforcement if required. It does appear that the courts are not happy with being used as speculative debt collectors by the likes of MIL Collections, Civil Enforcement Limited and a few others, and that word is going around the circuit.

Prankster Note

Buying the speculative debt off the parking company for one pound did not turn out to be the bargain MIL Collections were hoping for, and they are now several hundred pounds worse off.

Sadly many vulnerable people in similar cases will be tempted to cave in due to the bullying tactics of MIL Collections, and the fear that the debt may escalate. This will mean MIL only need to get paid for more cases than they lose to make the exercise profitable for them.

The Prankster advises people not to be a victim and to robustly defend themselves, following the procedures laid down by the courts and making it clear to MIL Collections they will be asking for punitive costs if the case gets as far as a hearing.

The Prankster will leave you with this linked-in endorsement of Alan Davis from his ex-colleague David West.

"Alan is one of the most generous people I have ever met and knows the debt industry inside out"

For someone who knows the debt industry inside out it does seem surprising so many basic errors were made regarding debt assignment and court procedure.

Friday, 4 December 2015

A motorist has reported their vehicle was keyed while parked at home following their appeal of a parking charge from a private parking company.

This may of course be a co-incidence, and may be the result of a rogue warden angry at not getting their bonus. However, if this has happened to you, please contact The Prankster at prankster@parking-prankster.com with evidence of the keying, the parking charge and the appeal.

If a pattern emerges, this can then be taken further with the appropriate bodies.

Tuesday, 24 November 2015

The Prankster has received this court report from a BMPA observer. Prankster notes are in italics.

Gladstones Solicitors scored another big payday, what with fees for filing the case and preparing a witness statement. As usual in cases reported to the Prankster, their client Link Parking was not so lucky.

In court was Mr Cowles, the driver of the car and Mr Gardner, a director from Link Parking. DJ Asplin opened proceedings by trying to establish the facts of the case

The car park in question was a car park in Bristol, not fully open to general members of the public but used for contract parking. Parking is permitted, according to the sign submitted in the Link Parking witness statement, for cars with a blue badge, cars with a valid P&D ticket displayed, or cars with a valid permit displayed. By parking otherwise, DJ Asplin explained, drivers are agreeing to pay a penalty of £100.

At this point Mr Cowles waved his evidence pack but DJ Asplin asked him to wait as he was taking all the excitement away. DJ Asplin then produced another sign, this time from the defendant's evidence pack, which had a different set of terms and conditions. He asked Mr Gardner about this sign. Mr Gardner explained this sign was put up by a company called TCN who are the landowners. The signs (for it turns out later there were many of these) were put up before Link Parking managed the site and are still there, two years later.

DJ Asplin asked why the signs had not been removed. Mr Gardner explained the building was listed and the signs would require planning permission to remove. DJ Asplin did not appear to believe this and made a funny noise. DJ Asplin asked why the signs could not be covered up with Link Parking signs. Mr Gardner did not come up with an answer.

DJ Asplin then attempted to understand the complexities of the site. Bargain Parking lease some of the spaces in the car park from the landowner, TCN. Other spaces are apparently available for P&D customers or leased to other parties by TCN directly. Bargain Parking then contract with companies whose staff need parking, and these companies allow some of their staff to park there. Mr Cowles was one such person. Meanwhile, Link Parking are retained by Bargain Parking to manage their part of the site.

It is not immediately apparent to The Prankster how Link Parking have standing to bring the case. The contract appears to be with Bargain Parking and to have been concluded long before the actual parking event. However, this was not explored in court.

DJ Asplin asked how a random person arriving would know which bays are patrolled by Link Parking. Mr Gardner replied that random people did not use the car park.

This does not appear to answer the question and appears to conflict with the statement that some spaces are used for P&D.

DJ Asplin then turned his attention to the rogue signs which stated; Permit Holders only. Use the car park at your own risk. Unauthorised users will be fined.

There was no requirement to display any permit and Mr Cowles explained he was an authorised user because his work authorised him.

DJ Asplin wondered how a member of the public was supposed to know which of the two different signs were valid and which not.

He then turned his attention to a map of a random car park somewhere in Cardiff, and asked what this had to do with the car park in question, which was in Bristol. Mr Gardner explained his solicitors, Gladstones Solicitors had a computer problem which 'printed one page down', and so had filed a map of the wrong car park.

DJ Asplin asked Mr Gardner did he not sign a witness statement on 27 September stating this was the car park in question? Mr Gardner admitted he had. DJ Asplin asked why, if the car park was not correct. Mr Gardner explained that when Gladstones had sent him the witness statement to sign, they had not included the evidence. DJ Asplin asked was that not a silly thing to do, to sign a witness statement which was not complete? Mr Gardner replied that the solicitors asked him to sign it. DJ Asplin asked if his solicitors asked him to jump off a cliff, would he do so? Mr Gardner replied he would not.

DJ Asplin then explained that the witness statement had been signed negligently.

DJ Asplin then asked Mr Cowles why the permit was not displayed. Mr Cowles explained that he had taken his wife's car that day, and had forgotten to switch permits. DJ Asplin mused that the car park attendant could not be expected to memorise all the registration numbers used by all the motorists.

Although they could easily have this list on a mobile device, or could cancel the ticket after the event once the motorist had established their authority to park.

DJ Asplin then pointed out that the rogue signs do not allow a ticket to be issued for not displaying a ticket. only for not having authority to park.

Mr Gardner explained he had noticed the mistake yesterday and had a plan of the correct car park. He asked if he might file it. Mr Cowles objected. After some deliberation, DJ Asplin concluded that it would not be fair to admit the new evidence on the day, as it should have been filed 2 weeks ago.

The witness statement contained a picture of a sign which was stated to be in the car park in Cardiff. Mr Gardner explained this was the same as the sign in Bristol but had not evidence to back this up. Mr Gardner stated there were two signs visible in the distance in a picture which showed Mr Cowles car. DJ Asplin stated that although on the face of it the might be the same, they were too far away to read and might be adverts for car boot sales for all he knew.

Mr Cowles explained he had been using the car park for 6 years, and when he parked he turned left, passed 4 of the 'rogue' signs which had been there for along time, were sturdy metal and were affixed to permanent structures like buildings and poles, and went into his work building. There was no reason to believe these were not the parking conditions in operation, or for him to wander round the car park looking for other terms and conditions. The Link Parking signs, in contrast, were at the other end of the car park, were made of flimsy material and attached to temporary link fencing. He had not really noticed them or felt the need to go and investigate them before this whole event happened.

DJ Asplin asked Mr Cowles if he had evidence he was allowed to park. Mr Cowles replied that he had the permit, and also a copy of the contract between his company and Bargain Parking. Mr Gardner retorted that the contract was the current contract, but was not in force at the time of the parking event. Additionally, it was not even signed. Mr Cowles replied that this was the copy his company had given him when asked, and that 40 employees were allowed to park although he did not have a list of the 40 names. Mr Gardner stated there was no proof Mr Cowles worked for the company in question, which was rather clutching at straws as Mr Cowles was wearing company clothing.

DJ Asplin wondered whether on the evidence he should accept that Mr Cowles was one of the 'chosen 40' and whether he should have seen one of Link Parking's signs from where he parked.

Mr Gardner then chipped in to say Mr Cowley was fully aware or the terms and conditions as he had had three tickets and paid two of them. Mr Cowley denied this. Mr Gardner reiterated that 2 tickets were paid for. Mr Cowley explained that these tickets were in any case issued after this parking event. One was to a hire car which his company had paid. The other was currently with Zenith debt collectors and he was waiting on the result of this case to decide what action to take.

Mr Gardner chipped in to say there was no need for the company to pay the ticket. Mr Cowley wondered how Mr Gardner knew so much about his companies internal procedures.

DJ Asplin decided to cut off this line and explained he was interested in this parking ticket, not other ones. He asked if Mr Cowley was willing to take the oath. Mr Cowley was. DJ Asplin then established Mr Cowley had been using the car park for 6 years, was one of the chosen 40 and had never been cognisant of the Link Parking signs. Mr Gardner had no questions to ask.

DJ Asplin then handed down his judgment.

The claim was for a parking charge of £150 plus £4.70 interest. Mr Garner had signed a witness statement provided by some solicitors in Cheshire before it was complete and which contained a map of a car park in Cardiff totally irrelevant to the case. There was therefore no plan showing where the notices were situated.

For Mr Cowley to be liable Link Parking should take reasonable steps to draw to his attention the terms and conditions of the car park.

There were notices in the car park which no longer applied. Link Parking should have removed or covered these over.

Is it likely Mr Cowley was aware of the need for authorisation to park? Yes, he was aware for 6 years. But the old notices do not say a permit must be displayed. To find for the claimant, the new notices must have come to the attention of the motorist.

There was no reason to suggest Mr Cowley should know of the new obligations.

Claim dismissed.

DJ Asplin then asked Mr Cowley if he wished to claim expenses (but warned him not to be triumphal). Mr Cowley did not.

Prankster Note

Although the Gladstones mess up did not help, The Prankster thinks Link Parking only have themselves to blame and they should have removed the old signs and provided coverage with their new signs.There is still the question of who the motorist is contacting with though? Bargain Parking or Link Parking?The Prankster has seen similar cases involving bad or confusing signage in which the IPC appeals service, the IAS, has always ruled on the side of the parking company. Based on today's verdict, it does seem like the IAS have got it wrong and do not rule the same way as a proper judge would. The Prankster would therefore advise against using the IAS in their 'nonstandard mode' (where the motorist pays £15 and the IAS verdict is binding. Instead, the motorist should either get a proper judge to rule on the case, or preferably, use an ADR Entity which does appear to be in line with the courts, and which is not binding on the motorist. One such possibility is the Consumer Ombudsman.The Prankster also wonders about the business model of Link Parking, which appears to be based on gouging legitimate authorised users of car parks for more money, and not on genuinely managing a car park. The Prankster has helped a number of motorists in previous Link Parking cases and all of them have been authorised users, not motorists abusing the facilities.

Tuesday, 17 November 2015

Phil Hilsden was sentenced today in Basingstoke. The Prankster has been aware of the proceedings for some time, but has refrained from blogging until the criminal case was completed. Phil Hilsden uses a number of aliases, including kirbyinfurnesslad, Ricky Gater (although there is a real Ricky Gater), and any number of one-time throwaway accounts.

In court today it emerged that Phil Hilsden is a previous convicted sex offender, has served 8 months in custody, and his previous convictions include sexual offences in youth court, credit card fraud and a more recent sexual offence.

Although the sites did legitimately help a number of motorists, it appeared the long term strategy was to promise to pay the parking fee if the appeals failed, and then never to do this. When the complaints escalated to unacceptable levels the company would phoenix and reemerge. A series of straw men and women were used as directors.

Here is a typical claim on the website:

Our Parking Appeal Service will cost you only £16 and we guarantee you won’t have to pay a penny to the parking company. If you receive a court claim we pay the ticket cost in full.

The appeals company is also believed to run a series of non-genuine service addresses. Although there are legitimate reasons to use a service address to appeal a parking ticket, it must be a real service address; it cannot be a means to evade the charge. A legitimate service address would inform the addressee of received mail and forward it to them. The service addresses Phil Hilsden used were apparently black holes which swallowed the mail.

One of the creditors of Parking Ticket Appeals Ltd started to pursue Phil Hilsden for alleged debts in the region of £35,000. It was at this point that Phil Hilsden started a concerted campaign of stalking and harassment against the creditor. The court were fully satisfied that the object of the campaign was to avoid payment of the monies owed.

In the Victim Impact Statement read out in court it emerged that the campaign had caused the victim extreme mental stress.

The stalking behaviour first came to light on New Years Day 2015 with online posts and within a few days of this, the conduct escalated to blogs. Contact was also made with the victim's employer, colleagues, housing association and the local police. The online attacks and harassment continued to such an extent that the victim was forced to move house, causing them to leave their job, their home and their family and move over 100 miles away. The victim was under extreme stress for an extended period, affecting the relationship with their girlfriend and causing a loss of 3 stone in weight.

The scariest moment was when someone knocked on the door of their old flat, literally days before the victim was due to hand in the keys, and posted details about the flat, the car and many other things online within an hour. At this point the victim feared for their safety, left the flat and did not return to the flat again. The idea that someone has now come looking for the victim caused serious alarm and distress, and he was genuinely in fear that if he remained in the flat even a day longer, he would suffer violence or worse.

Given the details published online it was obvious that there has been a very deep background check done, which was very alarming. Following this move, the harassment continued. Several other individuals were contacted about the victim, including a business associate, and threats were made against them for their association with the victim.

The police investigation took some time, during which Phil Hilsden was arrested and bailed.
Despite bail conditions, the victim continued to receive harassing contact from people involved in this.

Charges were eventually brought against Phil Hilsden to which he pleaded guilty in an earlier hearing.

In today's hearing the judges debated for an extended period before delivering their judgment. The sentence was 4 months in Custody, suspended for 24 months, together with 250 hours unpaid work, 20 days of offending behaviour courses, curfew from 9pm to 6am for two months, and a restraining order that he may not seek to contact the victim directly or indirectly, or publish anything about them by any means whatsoever, save that he may contact them in respect of civil proceedings via the court staff, a solicitor or as is necessary in a court building. He has to pay an £80 victim surcharge and £85 costs.

Following the court case civil claims can now commence against Phil Hilsden, which will possibly include the previous £35,000, but also may include amounts for harassment and distress which The Prankster estimates may add another £50,000.

It was also reported a scuffle broke out after the hearing and Phil Hilsden allegedly assaulted and punched a person serving him with legal papers. This was witnessed by Phil Hilsden's solicitor.

Tuesday, 10 November 2015

Would you willingly pay £85 if you were 1 minute late, parked one inch over a line, or returned to a car park after 59 minutes instead of one hour? Lord Neuberger thinks you would willingly pay this. However, he is on a salary of over £200,000, so £85 to him is like £8.50 to a person on £20,000 a year. He may therefore have got it horribly wrong.

Would you pay £8.50? Probably, because it would not be worth the hassle of complaining. But £85? Probably not. But this is only The Prankster's opinion. Perhaps you are one of those people who think rules are rules and so would willingly and happily pay £85 if you broke them, even if you were a pensioner and this was almost your entire weekly pension and left you without food or rent.

Of course, knowing how greedy parking companies can be, you would also have to happily and willingly pay if you broke down and so physically could not remove the car. ParkingEye have taken people to court for this. You would have to happily and willingly pay if you had an accident and injured yourself and could not remove your car. ParkingEye have taken people to court for this. You would have to happily and willingly pay if you stopped parking within the time allowed, but traffic congestion prevented you from leaving the car park for a few minutes. ParkingEye have taken people to court for this. You would also have to happily and willingly have to pay if you took a few minutes to park and pay for a ticket, and the operator's opinion of when your parking period began differed from yours. ParkingEye have taken people to court for this. You would also have to happily and willingly have to pay if you purchased a ticket, stuck it on your windscreen, but the glue the operator provided was not sufficient for the summer sun and the ticket fell off. Armtrac regularly issue tickets in these circumstances. You would also have to happily and willingly have to pay if you purchased a ticket, but the machine neither gave you the ticket nor you money back. Armtrac issue tickets in these circumstances.

Knowing how incompetent or corrupt some parking companies are you would also have to be prepared to appeal a parking ticket even if you did not break the rules. If you visited a car park twice but a not-fit-for-purpose ANPR system recorded you as visiting once, you would have to appeal. ParkingEye have taken people to court for this. If you sold the car before the parking event, but the DVLA did not update their records, you would have to appeal. ParkingEye have taken people to court for this. If the parking company were incompetent and did not put cameras on all entrances and exits of the car park, thereby missing the fact you left the car park, you would have to appeal. ParkingEye have taken people to court for this. If the warden doctored photos to make it seem you were parked for longer than you were, you would have to appeal. If you use the non-standard IAS appeal system, you would have to pay £15 to appeal, and when you lose you would also have to pay the parking charge and debt collector fees with no recourse to the courts. UK Parking Control have won appeals even though they doctored photographs.

You should also bear in mind that if you would like to renegotiate the charge to be, say the same level as council charges (£50/£25), that although this is a proven level of deterrence for council car parks, this level of charge may may not be enough to deter people in the car park you are currently in. Large numbers of people may be perfectly happy to pay £50 to park all day, which would leave you no place to park. This is an important point to bear in mind.

So, whenever you visit a car park where the parking charge is £85 or more, if you are willing to pay this in the above circumstances, tweet @parkingcontract #accept.

If you would have preferred to renegotiate, given the chance, tweet @parkingcontract #decline

This twitter campaign is being run by Barry Beavis. For more information see this link.

Sunday, 8 November 2015

The risk of having to pay it was wholly under the motorist’s own control. All that he needed was a watch.

This blog post examines some of the scams parking companies like ParkingEye use to try and part you from your money even when no contravention of the parking rules has occurred, or where the motorist is unexpectedly unable to leave the car park. It does seem as is if Lord Neuberger's advice is sadly misplaced. Here are some examples from The Prankster's recent casebook.

Alton Towers visit ruined by ParkingEye scam

A family visit to Alton Towers was ruined by a ParkingEye scam. On the way, the family called into Uttoxeter Services on the A50, about 15 minutes from Alton Towers. They arrived at around 11 am and left a few minutes later. They spent the day at Alton Towers and called into the services on the way home at around 7pm.

ParkingEye fraudulently sent the keeper a bill for £100 for staying all day, even though the motorist visited the service station twice. ParkingEye have sent out many such fraudulent bills in the past,
and apparently have a policy of refusing to cancel even though they know their system is not fit for purpose. This case was no different; the keeper appealed to ParkingEye and POPLA, both of which turned down her appeals. ParkingEye are now threatening court action, despite the manager of the service station and the manager of Starbucks asking them to cancel the charge. ParkingEye have offered to settle for £60, but the motorist will not be paying and prefers to have her day in court where she will rely on a number of witness statements and also large numbers of previous instances where ParkingEye 's systems have been found to be defective.

Lord Neuberger: All that (s)he needed was a watch
The Prankster consider's this poor advice from Lord Neuberger in this situation. The motorist obeyed all the rules yet still got issued with a parking charge.

Shopping bill goes sky high after ParkingEye scam.

A motorist arrived at a retail car park, read the signage, decided to accept the terms and conditions and purchased a ticket for two hours via their phone. 1 hour 58 minutes later they left the car park.

The motorist took around 6 minutes from entering the car park to find a place to park, park, then read the signs explaining how to pay by phone. This seems a reasonable amount of time for this process. The motorist then took 4 minutes according to their phone records to actually make the payment. Again, this seems a reasonable time.

Here is Lord Neuberger's advice:

ParkingEye has an appeals procedure, and the BPA Code of Practice provides at paragraph 13.4 for a reasonable grace period after the expiry of the fixed parking period. The appeals procedure provides a degree of protection for any overstayer, who would be able to cite any special circumstances as a reason for avoiding the charge. And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA.

The latest version of the British Parking Association code of practice stipulates that there should be a grace period at the beginning to allow the motorist to decide whether or not to accept the terms of parking, and a 10 minute grace period at the end to allow the motorist to leave. The motorist appealed to ParkingEye, who rejected their appeal.

Lord Neuberger: All that he needed was a watch
The Prankster considers Lord Neubergers advice to be particularly poor and misguided. The motorist appealed to ParkingEye. Did 'Tte appeals procedure provide a degree of protection'. No - ParkingEye rejected the appeal. What about the Code of Practice? 'while the Code of Practice is not a contractual document, it is in practice binding on the operator'. It appears the code is not as binding as Lord Neuberger thought. To quote that other well-known pirate, Captain Barbarossa "The Code is more what you’d call “guidelines” than actual rules."

As to a watch, that would be no help at all. The motorist thought they left within the time allowed from the ticket they purchased. ParkingEye backdated that time by an arbitrary amount which a motorist would have no way of knowing. The location of ParkingEye's cameras is even kept a closely guarded secret in some car parks and not disclosed even in FoI requests. In any case, a motorist would not be expected to be searching the sky for cameras while entering a car park; this would be dangerous. Motorists therefore have no way of knowing what time they should actually leave the car park to avoid a charge.

As an aside, this is the classic way ParkingEye scam millions of pounds a year from hospital visitors. The Prankster considers it a disgrace that vulnerable members of society are treated this way as items for profit by ParkingEye.

Reputable parking companies use ANPR to tell the motorist how much to pay on exit. However, this almost entirely helps motorists avoid parking charges and so ParkingEye do not use this type of system because it would make them bankrupt. Their processes are designed to fail so motorists have to pay charges; motorists are allowed to enter invalid registration and to pay wrong amounts.

Car breaks down in retail park
A motorist broke down in a retail park controlled by ParkingEye. She called a mechanic to get her car started. ParkingEye refused to believe the car was broken down, despite a letter from the mechanic,

Here is Lord Neuberger's advice:

The appeals procedure provides a degree of protection for any overstayer, who would be able to cite any special circumstances as a reason for avoiding the charge.

It would appear that once again Lord Neuberger's advice is totally useless. ParkingEye did not cancel the charge, despite the motorist breaking down, and despite the fact that a letter from the mechanic was produced as evidence.

Lord Neuberger: All that (s)he needed was a watch
The Prankster dos not know if the motorist owns a watch, but even if she did it would do no good. If a car won't start, it won't start.

It would appear that Lord Neuberger has given carte blanche for rogue parking companies like PakingEye and Vehicle Control Services to issue charges which have no validity whatsoever.

Wednesday, 4 November 2015

The long running issue of parking charges for overstaying in a free car park has been decided, with judges finding 6-1 in favour of the parking company over the motorist.

Consumer rights laws explicitly address the issue of traders forcing contracts on consumers, and define an example of an unfair term one where the consumer must pay a disproportionately high sum in compensation - which this clearly is, given both the normal cost of parking in the area (£3 all day) and ParkingEye's average cost per ticket issued of under £18. In these situations, Consumer Law asks whether the consumer would have come to the same deal if they were allowed to negotiate the contract.

"The question is not whether Mr Beavis himself would in fact have agreed to the term imposing the £85 charge in a negotiation, but whether a reasonable motorist in his position would have done so. In our view a reasonable motorist would have agreed. In the first place, motorists generally and Mr Beavis in particular did accept it"

This is of course a circular argument which could apply to any case of this nature. As this is a Supreme Court judgment it is binding case law and will apply to all cases from now on. If a number of consumers conclude a contract with a trader, than that contract will be deemed to be reasonable because a number of consumers concluded the contract. Thus the protections of the Unfair Terms in Consumer Contract Regulations 1999 and its successor The Consumer Rights Act 2015 are done away with at the stroke of the pen.

Lord Neuberger is no fool and will know the implications of his decision. The message from the judiciary is clear - a contact is a contract, whether business or consumer, and there cannot be any retrospective attempt to point out unfair terms. The consumers only cause of action would be to refuse to enter the contract. If the Government wish to restore consumer rights then they will need to further legislate.

Consumer Rights Act 2015

64 (4) A term is unfair if, contrary to the requirement of good faith, it causes asignificant imbalance in the parties’ rights and obligations to the detriment ofthe consumer.

Schedule 2 - 6 A term which has the object or effect of requiring a consumer who fails tofulfil his obligations under the contract to pay a disproportionately high sumin compensation.

EU Judgment Aziz v Caixa d'Estalva

in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.

In terms of penalties, this new judgment allows a charge to be deemed reasonable even if it greatly exceeds the cost to the trader. The trader is allowed to add an element for deterrence and a further element for a large profit margin. ParkingEye's cost are under £18 per ticket issued, so by allowing a charge of £100 the Supreme Court is setting the bar for all other courts that a profit of over 550% is an acceptable margin for damages for breach of contract. It is quite acceptable to charge a pensioner their entire weeks pension for a one minute overstay.

Friday, 30 October 2015

British Parking Association members are now putting the following text in their appeal rejection letters.

You have now reached the end of our internal appeals procedure.

[Operator specific text with instructions on how to appeal to POPLA]

By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.’

So why are BPA members telling motorists about a service they are not participating in? What is that service? And what should motorists do?

(2) Where a trader has exhausted its internal complaint handling procedure when considering a complaint from a consumer relating to a sales contract or a service contract, the trader must inform the consumer, on a durable medium—

(a) that the trader cannot settle the complaint with the consumer;(b) of the name and website address of an ADR entity or EU listed body that would becompetent to deal with the complaint; and(c) whether the trader is obliged, or prepared, to submit to an alternative disputeresolution procedure operated by an ADR entity or EU listed body.

Ombudsman Services also run the non-ADR Entity appeals service POPLA. However the two services are run on very different lines, as will be apparent shortly.

The Consumer Ombudsman has been certified by the Chartered Trading Standards Institute (CTSi) as an ADR entity. The Consumer Ombudsman might be able to help with any consumer dispute not already covered by other mandatory ADR provision (for example complaints about financial services will be better dealt with by the Financial Ombudsman Service).

The Consumer Ombudsman is an ADR provider rather than an appeals service. It could accept a complaint about a parking operator but it does not deal with complaints in the same way as POPLA considers appeals. If a complaint included that a PCN was issued incorrectly, this would be part of the consideration. But The Consumer Ombudsman might also consider poor administration and wider issues. The outcome would not simply be that the appeal had been won or lost, The Consumer Ombudsman might prescribe a tailored remedy for the circumstances (eg apologise, explain, financial award, other practical action).

The complaint would need to be referred to the parking operator (as with any trader) in the first instance. The legislation currently requires that if a trader cannot resolve a consumer complaint and the matter reaches deadlock, the trader must confirm the availability of a certified ADR entity and tell the consumer whether they will engage. There is no requirement for them to engage but more and more are doing so.

With the legislation being new, some traders are not referring consumers to a certified ADR entity. The Consumer Ombudsman still tries to help these consumers. If a consumer contacts The Consumer Ombudsman having already complained to the trader, they contact the trader to see if it wishes to engage with the process. In some cases they will, as they want to resolve the complaint. But if the trader does not wish to engage, they cannot look at the complaint. This is a restriction of the legislation.

If a motorist (consumer) contacted The Consumer Ombudsman, having already complained to the parking operator, they might contact the parking operator to see if it was willing to engage. They would not do this if the operator had already told the consumer they were not willing to engage as there would be no merit - so it is unlikely they would take this approach for a BPA approved operator issuing a PCN for a parking incident in England or Wales, unless the operator previously indicated they were willing to engage.

If a motorist in Scotland or Northern Ireland has complained about a PCN (or has another private parking complaint), and they cannot resolve the complaint with the parking operator, The Consumer Ombudsman may be able to help. However, this is reliant on the parking operator engaging with the process.

8. Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.

9. Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers may be made before proceedings are issued.

14. The court may decide that there has been a failure of compliance when a party has—
(a) not provided sufficient information to enable the objectives in paragraph 3 to be met;
(b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or
(c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.

15. Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that
(a) the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction;
(b) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction;
(c) sanctions are to be applied.

It is therefore important to consider using ADR at all times. Parking compaines try to restrict ADR to 21/28 days, but it is clear this is not supported either by the courts or by the new ADR legislation (which restricts it to one year)

BPA Members

POPLA should be used as a first appeals process. POPLA is binding on the operator but not on the motorist. However, POPLA does not always make the correct decisions. For instance, a long while back POPLA ruled against The Prankster on a double dipping case, where the Prankster's vehicle visited a car park twice but the operator recorded one long stay. POPLA's ruling was despite The Prankster providing a witness statement from a third party stating that his car was not in the car park at the times the operator stated. POPLA ruled against The Prankster on the grounds that although the witness stated the car was not in the car park, the witness did not state exactly were the car was. The Prankster thought this was ridiculous and as no contravention had occurred, decided not to pay anyway. There may also have been some confusion regarding squirrels.

Another reason for disagreeing with the POPLA verdict may be that the motorist has done more research and realises that they did not include all relevant points in their appeal.

If the motorist decides to continue to contest the charge they should therefore write to the operator on the following lines.

Dear Operator,I disagree with the POPLA verdict for the following reasons [reasons]. The debt is therefore denied and debt collection activities would not be appropriate on your behalf.If you wish to settle this via court action then the pre-action protocol suggests we make every effort to settle the matter via ADR first. POPLA is not an approved ADR entity, but the Consumer Ombudsman is. Please therefore indicate your willingness to settle. Practice directions state that the court may apply sanctions if you unreasonably refuse to use a form of ADR, or fail to respond at all to an invitation to do so.

If the operator refuses to allow you to use POPLA in the first place, then you can amend the first part of the letter.

IPC Members

The IPC offer the IAS, which is in The Prankster's opinion a kangaroo court with secretive assessors who do not understand consumer law or parking law, resulting in bizarre judgments in favour of the operator.

The IAS operates in two modes, normal mode, which is free to the motorist and non-binding, and screw-the-motorist mode, which costs a non-refundable £15, and is binding on the motorist.

The motorist may decide to use the normal mode, on the grounds that the result will be so bizarre that the operator would dare not use it in court. However, on no circumstances should anyone consider using the screw-the-motorist mode; this is in essence throwing money down the drain, if the verdicts The Prankster has seen has anything to go by.

This does leave the motorist in a dilemma; refusing to use ADR might be seen in a bad light by the courts. The motorist should therefore not refuse to use ADR, but politely point the operator to a fairer service.

Dear Operator,You have suggested we use the non-standard appeals service offered by the IAS. This service does not meet the statutory requirements for an ADR Entity. These requirements are listed in Schedule 3 of The Alternative Dispute Resolution for Consumer Disputes Regulations 2015 and the requirements not met are as follows:

5c (c) its ADR officials, the method of their appointment and the duration of their appointment;
7(c) ensures that the parties may, within a reasonable period of time, comment on the
information and documents provided under paragraph (b); 13. The body may only refuse to deal with a domestic dispute or a cross-border dispute which it
is competent to deal with on one of the following grounds—(a)-(f)4. The body has in place the following procedure in the event that an ADR official declares or is
discovered to have a conflict of interest in relation to a domestic dispute or cross-border dispute— 3(a) ensures that an ADR official possesses a general understanding of the law and the
necessary knowledge and skills relating to the out-of-court or judicial resolution of
consumer disputes, to be able to carry out his or her functions competently;

5c fails because the names of the assessors are kept secret.7c fails because the operator is allowed to introduce new evidence which the motorist is not allowed to comment on 13 fails because the service refuses to deal with disputes from vehicle keepers in Scotland. This is not one of the categories for which refusal is allowed4 fails because there is a fundamental conflict of interest. The service is masterminded by Will Hurley and John Davies. These two people are also directors of Gladstones Solicitors who file large numbers of claims on behalf of operators. They therefore have a financial interest in motorists failing appeals so they can then lure operators into filing a court claim.3(a) fails because the assessors do not understand parking related law or consumer law. I quote a recent decision which illustrates this, where the assessor decides that the requirements of the Protection of Freedoms Act 2012 do not have to be met for keeper liability to apply:

Non-compliance with POFA 2012. From the same
case[1], Moore-Bick LJ said that the provisions in the POFA strongly supported the
conclusion that Parliament considered it to be in the public interest that
parking charges of this kind should be recoverable.

[1] ParkingEye v Beavis

Obviously an appeals service where the assessors decide that the statutes do not apply, and misquote case law in this way, is not fit for purpose. It is of course ironic that the assessor is saying that the very existence of POFA 2012 is proof that the actual requirements of POFA 2012 can be ignored. No wonder the assessors do not wish their names to be known.The DVLA and the CTSI are well aware of the shortcomings of the IAS appeals service, which is currently being investigated by both of them. The legislation does give an ADR Entity six months to improve its processes and meet the legislation.I therefore believe that the IAS is not a fit body to use until both the DVLA and CTSI have finished their investigations, and the body has changed its processes to meet the legislation. I would be prepared to wait until this point in time if you agree.Failing that, I propose that instead of the IAS, we use an ADR Entity which does currently meet all the regulatory requirements right now. One such body is the Consumer Ombudsman available at this website http://www.consumer-ombudsman.org/I propose we use this body. Please note that practice directions state the court may impose sanctions if you unreasonably refuse to use a form of ADR, or fail to respond at all to an invitation to do so.Yours,Motorist

To protect yourself, repeat your offer to use ADR in every letter to the operator.

About Me

The Parking Prankster is dedicated to putting the fun back into parking. Sometimes there is a serious side too, as the prankster highlights scams and ruses used by the darker side of the parking industry to part you from your money.
Please contact me with parking stories you think would make interesting blog posts either via email prankster@parking-prankster.com or my twitter feed, @ParkingPranks